Legal History Blog

Friday, December 9, 2016

Paul H. Robinson, University of Pennsylvania Law School, and Sarah M. Robinson, have posted 1911 – Triangle Factory Fire – Building Safety Codes, which is the first chapter of their forthcoming book, Tragedy, Outrage and Reform: Crimes that Changed Our World (Rowman & Littlefield, 2018). The table of contents, included with the chapter, lists twenty-three crimes and the legislation or other public policy each prompted. The authors explain:

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around them by energizing, or disgusting, the rest of us. The images are striking: a burning river, a hundred poisoned children, falling flaming bodies, four dead little girls in their Sunday best, collapsing skyscrapers, and indifferent police watching a wife get beaten.

The stories show us how a single individual can make an enormous difference. The mother whose daughter is killed by a drunk driver ends up changing the way we think about drunk driving. The government attorney who figures out how to protect witnesses against the Mafia creates a flood of organized crime defections. A black minister who creates his own vigilante squad starts the war on drugs.

The stories also show how far we have come even within the memory of people still living. We take for granted much of the world around us, but things were very different not long ago. Imagine a world where stores regularly sell contaminated food and adulterated drugs, where many buildings are veritable death traps, and where flagrant financial wrongdoing is accepted as a natural corollary to capitalism. This is our not-too-distant past.

Perhaps most striking in these tales is what they reveal about the nature of progress. We would like to think it is orderly and rational, but in truth it is often chaotic and unpredictable. Who would have guessed that a single kidnapping would create the federalization of criminal law, that a particular sniper would lead to the creation of SWAT teams, or that an attack on a New York Street would inspire the national 9-1-1 system? At the same time, the stories are comforting in the apparent inevitability of American progress. Our progress may be messy but it is relentless.

As a bonus, the stories, presented in chronological order, walk the reader through some of the most interesting parts of American social and political history: the Progressive era of the 1900s, Prohibition in the 1920s, the Depression in the 1930s, the inward focus of the post-World War II 1950s, the social revolution of the 1960s, the rise of global terrorism in the 1970s and militant Islam in the 1980s, and the expansion of the global economy in the 2000s.

The book’s ultimate success is in presenting riveting accounts of human stories that taken together provide important insights into foundational issues like the nature of social progress.

Presented here is the first chapter of the book: the story of the 1911 Triangle Factory fire, which was horrific in its effect and came at just the right time of political and social development so as to trigger a widespread outrage that ultimately led to a tectonic shift in how our society, and eventually the world, dealt with building safety.

Harvard Today has posted a story on the lecture series, “Diversity and U.S. Legal History,” held at the Harvard Law School this semester. HT reports that “the series was sponsored by Dean Martha Minow and organized by Professor Mark Tushnet, William Nelson Cromwell Professor of Law, who also designed a reading group to complement the lectures.” The post includes links to lectures by Joseph Singer, Rachel Moran, Tomiko Brown-Nagin, Randall Kennedy, John S. W. Park, Annette Gordon-Reed, Michael Klarman, Kenneth Mack, Diana Eck, and Katherine Franke.

Thursday, December 8, 2016

[We have the following announcement of the Jack Miller Teaching and Research Post-Doctoral Fellowship in Legal Studies at Northwestern University, 2017-2019.]

Northwestern’s Center for Legal Studies is pleased to continue a collaborative partnership with the Jack Miller Center for Teaching America’s Founding Principles and History. We seek applications for the centerpiece of the partnership: a two-year post-doctoral fellowship held in residence at Northwestern University’s Center for Legal Studies beginning September 1, 2017.

A strong preference will be given to candidates working at the intersections of constitutional innovation, politics, and law in the context of the rise of eighteenth century invention, new understandings of property, the Enlightenment, and the creation of the United States. Particularly encouraged to apply are candidates in legal history, the history of political and economic thought, and/or political theory whose work is empirically grounded in the eighteenth century but has significant contemporary implications for questions of constitutionalism, liberty, equality, and democracy.

The post-doctoral fellow will offer three courses per year on topics pertaining to early American and Atlantic Enlightenment history, political and economic thought, and/or social science. In addition to engaging in an active research and publishing agenda, the candidate is expected to provide a reasonable amount of assistance with organizing other activities associated with the Fellowship and the Legal Studies Program. The annual salary for the fellow is $50,000, plus fringe benefits and a $1,500 renewable annual research budget. The fellow is required to organize and participate in several activities associated with Jack Miller Center events at Northwestern. These activities include producing an essay on the fellow’s work; participating in the Annual Jack Miller Faculty Development Summer Institute for professors; working with Legal Studies faculty hosting a website that features the fellow’s work and other activities related to the Jack Miller Center; and planning, attending, and participating in the Law in Motion Lecture series. Generous funds are available to bring in scholars central to the fellow’s own scholarship for such events. This is a nine-month faculty appointment, and applicant must have a Ph.D. in hand by September 1, 2017.

Applicants should submit a cover letter stating qualifications and field of interest, a CV, a writing sample, a sample syllabus of a proposed course, and two letters of recommendation (may be sent under separate cover). Northwestern University is an Equal Opportunity, Affirmative Action Employer of all protected classes including veterans and individuals with disabilities. Women and minorities are encouraged to apply. Hiring is contingent upon eligibility to work in the United States. Applications should be submitted no later than February 15, 2017. Apply here.

Few provisions of the American Constitution have had such a tumultuous
history as the contract clause. Prompted by efforts in a number of
states to interfere with debtor-creditor relationships after the
Revolution, the clause—Article I, Section 10—reads that no state shall
“pass any. . . Law impairing the Obligation of Contracts.” Honoring
contractual commitments, in the framers’ view, would serve the public
interest to encourage commerce and economic growth. How the contract
clause has fared, as chronicled in this book by James W. Ely, Jr., tells
us a great deal about the shifting concerns and assumptions of
Americans. Its history provides a window on matters central to American
constitutional history, including the protection of economic rights, the
growth of judicial review, and the role of federalism.

Under
the leadership of Chief Justice John Marshall, the Supreme Court
construed the provision expansively, and it rapidly became the primary
vehicle for federal judicial review of state legislation before the
adoption of the Fourteenth Amendment. Indeed, the contract clause was
one of the most litigated provisions of the Constitution throughout the
nineteenth century, and its history reflects the impact of wars,
economic distress, and political currents on reading the Constitution.
Ely shows how, over time, the courts carved out several malleable
exceptions to the constitutional protection of contracts—most notably
the notion of an inalienable police power—thus weakening the contract
clause and enhancing state regulatory authority. His study documents the
near-fatal blow dealt to the provision by New Deal constitutionalism,
when the perceived need for governmental intervention in the economy
superseded the economic rights of individuals.

Though the 1970s
saw a modest revival of interest in the contract clause, the criteria
for invoking it remain uncertain. And yet, as state and local
governments try to trim the benefits of public sector employees, the
provision has once again figured prominently in litigation. In this
book, James Ely gives us a timely, analytical lens for understanding
these contemporary challenges, as well as the critical historical
significance of the contract clause.

A few blurbs:

"Students of the modern Constitution pay little attention to the
Contract Clause, yet for more than 150 years it was one of the most
litigated issues before American courts. James Ely has done a masterful
job in not only analyzing the development of Contract Clause
jurisprudence, but does so in a way that will be understandable by lay
persons as well as scholars. This will be the definitive book on this
subject for many years to come."—Melvin I. Urofsky

"Professor
Ely has indeed written the ‘definitive history’ of the clause that once
was the Constitution’s most prolific source of litigation. It will
immediately become the indispensable text, superseding Benjamin F.
Wright’s classic but outdated study. With his unrivaled mastery of case
law and legal scholarship, Ely has crafted a work that in telling the
particular story of the contract clause is also a probing examination of
constitutional law’s elusive quest to draw the line between
governmental regulation and the free pursuit of economic activity."—Charles F. Hobson

Hosea Stout witnessed and influenced many of the major civil and
political events over fifty years of LDS history, but until the
publication of his diaries, he was a relatively obscure figure to
historians. Hosea Stout: Lawman, Legislator, Mormon Defender is the first-ever biography of this devoted follower who played a significant role in Mormon and Utah history.

Stout joined the Mormons in Missouri in 1838 and followed them to
Nauvoo, where he rose quickly to become a top leader in the Nauvoo
Legion and chief of police, a position he also held at Winter Quarters.
He became the first attorney general for the Territory of Utah, was
elected to the Utah Territorial Legislature, and served as regent for
the University of Deseret (which later became the University of Utah)
and as judge advocate of the Nauvoo Legion in Utah. In 1862, Stout was
appointed US attorney for the Territory of Utah by President Abraham
Lincoln. In 1867, he became city attorney of Salt Lake City, and he was
elected to the Utah House of Representatives in 1881.

But Stout’s history also had its troubled moments. Known as a violent
man and aggressive enforcer, he was often at the center of controversy
during his days on the police force and was accused of having a
connection with deaths in Nauvoo and Utah. Ultimately, however, none of
these allegations ever found traction, and the leaders of the LDS
community, especially Brigham Young, saw to it that Stout was promoted
to roles of increasing responsibility throughout his life. When he died
in 1889, Hosea Stout left a complicated legacy of service to his state,
his church, and the members of his faith community.

This essay responds to “The Sex Bureaucracy,” in which Jacob Gersen and Jeannie Suk identify a “bureaucratic turn in sex regulation”—one that has expanded the reach of sexual regulation to include “nonviolent, non-harassing, voluntary sexual conduct” (or in their words, “ordinary sex”). In their view, the Department of Education’s campaign against sexual assault on college campuses epitomizes this bureaucratic shift. While applauding the authors’ attention to the intersection of sexuality and governance, we challenge their account of the “bureaucratic turn” as an unprecedented event. Drawing on examples from across U.S. history, we show how administrative agencies and unelected bureaucrats have persistently and robustly regulated sex and sexuality, including “ordinary sex.” Building on this more historical and nuanced portrait of America’s “sex bureaucracy,” we then identify what is truly new and striking about the slice that Gersen and Suk explore. In the Department of Education’s regulation of sex, we see clearly how consent—and specifically, affirmative consent—has replaced marriage as the boundary marker between licit and illicit sexual conduct. At a time when marriage no longer holds force as the distinguishing feature of lawful sex and sexuality, enthusiastic, unambivalent expressions of consent provide the state with documentable signals of appropriate sex and sexuality, while also, we speculate, reinforcing an ascendant neoliberal logic of citizenship and governance. In short, the “sex bureaucracy” is old, but innovative, and very much deserving of our scrutiny.

Interdisciplinarity is an idea which has
became so ubiquitous in modern academic life that is it is often difficult to
cabin what it exactly implies. In the world of legal scholarship, the
traditional focus has been on “law and” disciplines, such as law and society or
law and economics. Outside of
the legal academia, this is equally true as the classic disciplinary distinctions
of the early to mid-20th century have become as suffused with
methodological and theoretical borrowings.

No
field has felt this pressure more than social-cultural anthropology. The traditional holism of ethnographic fieldwork routinely borrowed from
existing theories including those from psychology, sociology, and law. And in recent decades the central disciplinary markers of anthropology, such
as ethnography and “culture,” have been almost universally absorbed into other
disciplines, while the geographic scope of what anthropologists study has
greatly expanded from solely tribal or premodern cultures.

In
this vein, today I will focus not on a “law and” but how I came to thing about “anthropology
and history” while writing my first book. Prior to a historical turn late in my doctoral studies, I had long been influenced by
historical perspectives in my early academic life. My undergraduate training led to theses regarding judicial decision-making during the
Tang and Song dynasties in China
and the 20th century Chinese interpretation of judicial independence. In fact,
I was very close to entering the University
of Michigan’s unique Anthropology and History doctoral program before I decided to stay solely in anthropology.

Moreover, it is very difficult to become a contemporary anthropologist and not engage
with historical sensibilities. The field has been grappling with explaining social change over time ever since
it began to move away from its original funcationalist aspiration to “map” a
particular social space in its entirety at one point in time. This transition from
synchronic to diachronic analysis was complicated by anthropology’s engagement,
at some points enabling and others challenging, with the implicit historicism
of evolutionary theories which posited modern Western societies as the
endpoints of social development. In parallel, the relationship of anthropology to colonialism still looms large over the discipline.

Many
essays and books have been written about the development of “historical
anthropology” or “anthropological history.” Similarly, the 20th
century development of the fields of popular and cultural history were heavily
influenced by anthropological theories and sensibilities
regarding culture and agency, to an extent that they are almost taken for
granted today. Noted collaborations emerged including the seminar historian Robert
Darnton and anthropologist Clifford Geertz famously taught together for decades at Princeton. There
are now journals specifically concerned with history and anthropology, and scholars,
such as Alan Macfarlane, who devote their career to this particular interdisciplinary
engagement.

Owning Ideas is a comprehensive account of the emergence of the concept
of intellectual property in the United States during the long nineteenth
century. In the modern information era, intellectual property has
become a central economic and cultural phenomenon and an important lever
for allocating wealth and power. This book uncovers the intellectual
origins of this modern concept of private property in ideas through a
close study of its emergence within the two most important areas of this
field: patent and copyright. By placing the development of legal
concepts within their social context, this study reconstructs the
radical transformation of the idea. Our modern notion of owning ideas,
it argues, came into being when the ideals of eighteenth-century
possessive individualism at the heart of early patent and copyright were
subjected to the forces and ideology of late-nineteenth-century
corporate liberalism.

Advance praise:

"This book is a
superb study of the transformation of American copyright and patent
doctrine in the nineteenth century. Deeply researched, finely nuanced
and lucidly presented. Owning Ideas will be read by literary scholars,
cultural historians, Americanists generally and scholars in
communications and media departments as well as by legal scholars. It
will quickly become a classic." -- Mark Rose

"Building on the foundation established by Rose and Deazley in
their histories of the invention of copyright in the 18th century,
Bracha’s brilliant intellectual history explains how the fundamental
components of parents and copyright - authorship, object of protection
and scope - were transformed over the 19th century. With amazing
analytical clarity, as well as wonderful depth, Owning Ideas, is the
first sophisticated account of the development of the constitutive
assumptions of modern American intellectual property law." -- Lionel Bently

Tuesday, December 6, 2016

My colleague Wally Mlyniec notes in an email to the Georgetown University Law Center's faculty, in part in reference to the Georgetown clinic he led for many year:

Today marks a
significant day in American jurisprudence and an especially significant
day for the Juvenile Justice Clinic. . . . Norman Dorsen
argued the case of In re Gault before the Supreme Court. The case was
first noticed by the late Amelia Lewis, a sole practitioner in the state
of Arizona. Mrs. Lewis took the case after the family of the boy,
Gerald Gault, had virtually exhausted its appeals. The American Civil
Liberties Union and its Arizona affiliate underwrote the effort, but
Mrs. Lewis paid her way to Washington and her expenses while here. She
later said she had been drawn to the case because "I have raised three
healthy sons, and I wanted to give something back." The Court’s decision
required that lawyers be appointed for all children prosecuted in the
juvenile delinquency courts throughout the nation. The Court’s decision
also made the due process rights of notice, confrontation, and cross
examination, and the privilege against self-incrimination part of the
delinquency court process. It also became the basis for all we do in
Georgetown’s Juvenile Justice Clinic -- the longest continuously
operating juvenile justice clinic in American academia.

The national community of juvenile justice lawyers are commemorating this year as Gault at 50. It will culminate May when we celebrate the rendering of the Court’s decision.

Cambridge University’s release on the symposium and lecture, by David Ibbetson, at the Centre for English Legal History, on the great legal historian S.F.C. Milsom (1923-2016) is here. The same release notes that the event “marked the launch of fundraising efforts for the Centre for English Legal History. . . . The Centre aims to preserve a large and growing collection of legal historical materials, including Professor Milsom’s own collection, and to perpetuate the scholarly tradition of which Professor Milsom was an integral part.”

[We're moving this post up, as the deadline of December 10, 2016 is fast approaching!]

The Institute for Constitutional History is pleased to announce “Democratic Constitutionalism," another seminar for advanced graduate students and junior faculty. The seminar will explore the relationship between judicial review and constitutional interpretation outside the courts. It will study how those in Congress and the Executive Branch, as well as citizens in political parties and social movements, make claims on the Constitution. Using case histories involving civil rights, gun rights, abortion, same-sex marriage, and religion, we will examine the roles that political mobilization and conflict play in the development of constitutional meaning inside and outside of courts.

The instructors are Robert Post, Dean and Sol and Lillian Goldman Professor of Law at Yale Law School, and Reva Siegel, the Nicholas deB. Katzenbach Professor of Law at Yale Law School.

The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities

The dates the seminar will meet are January 13, January 27, February 17, and February 24; Fridays from 2-5 p.m. The seminar will be held at the New-York Historical Society, 170 Central Park West, New York City. Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at MMarcus@nyhistory.org until December 10, 2016. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to Mmarcus@nyhistory.org.

There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

The Institute for Constitutional History (ICH) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

Support for this seminar of the Graduate Institute for Constitutional History is provided in honor of Eric J. Wallach. The Graduate Institute for Constitutional History is supported, in part, by the
Saunders Endowment for Constitutional History and a “We the People” challenge grant from the National Endowment for the Humanities.

Much has been written about women’s rights pioneer Elizabeth Cady
Stanton. Historians have written her biography, detailed her campaign
for woman’s suffrage, documented her partnership with Susan B. Anthony,
and compiled all of her extensive writings and papers. Stanton herself
was a prolific author; her autobiography, History of Woman Suffrage, and Woman’s Bible are
classics. Despite this body of work, scholars and feminists continue to
find new and insightful ways to re-examine Stanton and her impact on
women’s rights and history.

Law scholar Tracy A. Thomas extends
this discussion of Stanton’s impact on modern-day feminism by analyzing
her intellectual contributions to—and personal experiences with—family
law. Stanton’s work on family issues has been overshadowed by her work
(especially with Susan B. Anthony) on woman’s suffrage. But throughout
her fifty-year career, Stanton emphasized reform of the private sphere
of the family as central to achieving women’s equality. By weaving
together law, feminist theory, and history, Thomas explores Stanton’s
little-examined philosophies on and proposals for women’s equality in
marriage, divorce, and family, and reveals that the campaigns for equal
gender roles in the family that came to the fore in the 1960s and ’70s
had nineteenth-century roots. Using feminist legal theory as a lens to
interpret Stanton’s political, legal, and personal work on the family,
Thomas argues that Stanton’s positions on divorce, working mothers,
domestic violence, childcare, and many other topics were strikingly
progressive for her time, providing significant parallels from which to
gauge the social and legal policy issues confronting women in marriage
and the family today.

A few blurbs, starting with a continuation of Brophy's:

". . . . Thomas
knits together Stanton's values to reveal her as decades ahead of her
time. In fact, I'm not sure the rest of U.S. culture has quite caught
up to her views on marriage. A very good book and one that–like Stanton
herself–breaks free from convention. How could there be higher praise?" —Alfred Brophy

"Thomas
does both legal studies and feminist history a great service.
Comprehensive in its approach to Stanton’s life, Thomas’ enjoyable and
eminently readable text unearths new information about this most
important legal mind while deftly directing our attention to the key
ways our legal culture has been indelibly stamped with Stanton’s
towering intellect and radical spirit." —TJ Boisseau

More information is available here. Professor Thomas has been blogging about her book here.

Monday, December 5, 2016

From the Law and Society Association we have the following announcement:

The Law and Society Association is pleased to open nominations to our
annual awards for scholarship in the field of law and society. The
awards will be presented at the 2017 International Meeting on Law and
Society in Mexico City, Mexico. Each award is funded by individual
contributions.

Nominations close on January 2, 2017
for the J. Willard Hurst Award, the Herbert Jacob Book Award, and the
Ronald Pipkin Service Award. All other award nominations will close on January 15, 2017.

Click on the links below to find out more about individual prizes, requirements, and links to our submission site:

New from Springer is Bronislaw Malinowski’s Concept of Law, edited by Mateusz Stępięń, Department of Sociology of Law, Jagiellonian University, Krakow, Poland. Professor Stępięń writes that this essay collection "began to take shape at a workshop: Malinowski’s Concept of Law from the Native’s Point of View, organized in Cracow by Jagiellonian University (on 12–13th September 2014) as an initiative to start a substantial debate on Malinowski’s forgotten legal concepts. The event commemorated the 130th anniversary of his birth." From his preface:

Bronislaw Malinowski is undoubtedly one of the titans of modern social sciences. It is impossible to underestimate his impact on a number of disciplines beyond social anthropology, including linguistics, religion, sociology or Cultural Studies, to name a few. Scientific legacy of Malinowski was mostly well-preserved and documented, as well as widely discussed—his works of magic, language, kinship, family, or religion became the subject of numerous studies. Moreover, his meta-conceptions (e.g. functionalism, cultural determinism) strongly influenced the debates on the way of practicing social science and mutual relationship between culture and biology. In broader terms, the importance of Malinowski’s ideas exceeds the scope of social anthropology and it constitutes a part of the common heritage of social sciences.

Against this background, it is astonishing how little attention was paid to Malinowski’s legal conceptions. . . .

Emily Kadens, Northwestern University School of Law, has posted The Admiralty Jurisdiction of the Court of Requests, which appears in Texts and Contexts in Legal History: Essays in Honor of Charles Donahue, ed. John Witte, Jr., Sara McDougall, Anna di Robilant, 349-66 (Robbins Collection 2016):

During the sixteenth and early seventeenth centuries, the English Court of Requests played a substantial role within the sphere of the parallel and competing jurisdictions of the Westminster courts. It served as a jack-of-all-trades court, a court of last resort, and a quasi-appellate forum in which a certain subset of litigants could have their cases heard or reheard in what they apparently considered to be a more favorable venue. Admiralty disputes made up a small but not insignificant part of the Court’s docket from the beginning. This chapter details the types of admiralty disputes heard in Requests and the various ways litigants used the Court.

In the Wall St. Journal, D.G. Hart reviews “The Tragedy of U.S. Foreign Policy” by Walter A. McDougall, which suggests that America’s civil religion—the belief in our nation’s special purpose and blessing from God—has led to folly abroad. In The World War That Never Ended, Brendan Simms reviews “The Vanquished: Why the First World War Failed to End” by Robert Gerwarth.

Belatedly, we note that Newton Minow was one of the recent recipients of the Presidential Medal of Freedom. In 1961, John F. Kennedy chose Minow, age 34, to chair the Federal Communications Commission as one of a series of meritocratic appointments that included Philip Elman to the Federal Trade Commission and Manuel F. Cohen to the Securities and Exchange Commission.

The Beijinger notes the opening earlier this year of the China Court Museum. Exhibits treat famous legal cases from around the world, including the OJ Simpson trial.

Recently, the American Historical Association’s listserv circulated a query from a person seeking a home for “documents from my husband's family that include a former New York Appellate Court Judge (Cuthbert Pound), journals covering 20+ years during the mid-1800's to 1900, and numerous letters." We suggested she contact the Historical Society of the New York Courts and the Charles B. Sears Law Library of the University at Buffalo School of Law.

The December issue of the newsletter of the Historical Society of the DC Circuit, available soon here, reports that the Society “is sponsoring the writing of a biography of Chief Judge William B. Bryant by award-winning author Tonya Bolden,” written for young adults. And on February 14, 2017, it will sponsor “The Reporter’s Privilege and National Security: The Case of In Re: Grand Jury Subpoena, Judith Miller.” "The program will explore the common-law basis for a reporter’s privilege and how best to strike the balance between the public’s right to know and the Government’s need to secure information in the national interest." Two members of the original panel, David S. Tatel and David B. Sentelle, will preside over a re-enactment of the arguments in Miller's case.

Matthew Dallek, George Washington University, will discuss Defenseless under the Night, his history of the WW2-era Office of Civilian Defense, at the FDR Presidential Library and Museum at 7:00 PM on Pearl Harbor Day. More.

ICYMI: The University of Chicago's Geoffrey Stone likens the Republican Senators' refusal to give Judge Merrick Garland a hearing to FDR's Court-Packing Plan. That was the last time, he writes, that "politicians tried in so blatant a manner to manipulate the makeup of the Supreme Court in violation of long-standing norms." Also, Seth Barrett Tillmannotes that the Congressional Research Service has revised its guidance on the Foreign Emoluments Clause. And, over at the Faculty Lounge: North Carolina Law's Eric Muller on Locking Away Korematsu's Loaded Weapon, and Al Brophy on the report of Yale University’s Committee to Establish Principles on Renaming, chaired by YLS professor John Witt.

Weekend Roundup is a weekly feature compiled by all the Legal History Bloggers.

Friday, December 2, 2016

[The Stanford Law School and the University of Pennsylvania Law School announce their Tenth International Junior Faculty Forum with the following call for papers.]

Sponsored by Stanford Law School and the University of Pennsylvania Law School, the International Junior Faculty Forum (IJFF) was established to stimulate the exchange of ideas and research among younger legal scholars from around the world. We live today in a global community– in particular, a global legal community. The IJFF is designed to foster transnational legal scholarship that surmounts barriers of time, space, legal traditions and cultures, and to create an engaged global community of scholars. The Tenth IJFF will be held at Stanford Law School in October 2017 (the exact date has not yet been fixed).

In order to be considered for the 2017 International Junior Faculty Forum, authors must meet the
following criteria:
Citizen of a country other than the United States
Current academic institution is outside of the United States
Not currently a student in the United States
Have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years as of 2017; and
Last degree earned less than ten years before 2017

Papers may be on any legally relevant subject and can make use of any relevant approach: they can be quantitative or qualitative, sociological, anthropological, historical, or economic. The host institutions are committed to intellectual, methodological, and regional diversity, and welcome papers from junior scholars from all parts of the world. Please note, however, that already published papers are not eligible for consideration. We particularly welcome work that is interdisciplinary.

Those who would like to participate in the IJFF must first submit an abstract of the proposed paper. Abstracts should be no more than two (2) pages long and must be in English. The abstract should provide a roadmap of your paper—it should tell us what you plan to do, lay out the major argument of the paper, say something about the methodology, and indicate the paper’s contribution to scholarship. The due date for abstracts is Monday, January 16, 2017, although earlier submissions are welcome. Please submit the abstract electronically to both ijff@law.stanford.edu and ijff@law.upenn.edu with the subject line, International Junior Faculty Forum. The abstract should contain the author’s name, home institution, and the title of the proposed paper. Please also send a current CV.

After the abstracts have been reviewed, we will invite, no later than mid-February, a number of
junior scholars to submit full papers of no more than 15,000 words, electronically, in English, by
mid-May 2017. Please include a word count for final papers. There is no fixed number of papers to be invited, but in the past years up to 50 invitations have been issued from among a much larger number of abstracts.

An international committee of legal scholars will review the papers and select approximately ten papers for full presentation at the conference, where two senior scholars will comment on each paper.

After the remarks of the commentators, all of the participants, junior and senior alike, will have a
chance to join in the discussion. One of the most valuable—and enjoyable—aspects of the Forum, in the opinion of many participants, has been the chance to meet junior and senior scholars, and to talk about your work and theirs.

Stanford and Penn will cover expenses of travel, including airfare, lodging, and food, for each
participant. Questions should be directed to ijff@law.stanford.edu.

Professor Lawrence M. Friedman, Stanford Law School
Professor Eric A. Feldman, University of Pennsylvania Law School

We missed the Harvard Law School’s conference in honor of the Charles Donahue, the Paul A. Freund Professor of Law, when it was held back in October, but Harvard Law Today has just posted a nice report. “Scholars came from around the country and around the world and spoke on topics related to medieval and early modern history. The day culminated with the presentation to Donahue of a festschrift, “Texts and Contexts in Legal History: Essays in Honor of Charles Donahue” (The Robbins Collection, University of California at Berkeley).” John Witte, Jr., an editor of the volume, said, “[W]e owe our greatest thanks to Professor Donahue for his brilliant scholarship, teaching, and mentorship, for his generous humanity, fidelity, and integrity, and for the sterling example he offers to all of us of a gentleman’s scholarly life lived well. May it long continue!”

This book argues that Oliver Wendell Holmes Jr., helps us see the law through an Emersonian lens by the way in which he wrote his judicial dissents. Holmes’s literary style mimics and enacts two characteristics of Ralph Waldo Emerson’s thought: “superfluity” and the “poetics of transition,” concepts ascribed to Emerson and developed by literary critic Richard Poirier. Using this aesthetic style borrowed from Emerson and carried out by later pragmatists, Holmes not only made it more likely that his dissents would remain alive for future judges or justices (because how they were written was itself memorable, whatever the value of their content), but also shaped our understanding of dissents and, in this, our understanding of law. By opening constitutional precedent to potential change, Holmes’s dissents made room for future thought, moving our understanding of legal concepts in a more pragmatic direction and away from formalistic understandings of law. Included in this new understanding is the idea that the “canon” of judicial cases involves oppositional positions that must be sustained if the law is to serve pragmatic purposes. This process of precedent-making in a common-law system resembles the construction of the literary canon as it is conceived by Harold Bloom and Richard Posner.

Wednesday, November 30, 2016

[We have the following announcement.]
Harvard Law School invites applications for the Berger-Howe Fellowship for the academic year 2017-2018. Eligible applicants include those who have a first law degree, who have completed the required coursework for a doctorate, or who have recently been awarded a doctoral degree. A J.D. is preferred, but not required. We will also consider applicants who are beginning a teaching career in either law or history. The purpose of the fellowship is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined. There are no limitations as to geographical area or time period.

Fellows are expected to spend the majority of their time on their own research. They also help coordinate the Harvard Law School Legal History Colloquium, which meets four or five times each semester. Fellows are invited to present their own work at the colloquium. Fellows will be required to be in residence at the law school during the academic year (September through May).

Applicants for the fellowship for 2017-2018 should submit their applications and supporting materials electronically to Professor Bruce H. Mann (mann@law.harvard.edu).

Applications should outline briefly the fellow’s proposed project (no more than five typewritten pages) and include a writing sample and a curriculum vitae that gives the applicant’s educational background, publications, works in progress, and other relevant experience, accompanied by official transcripts of all academic work done in college and at the graduate level. The applicant should arrange for two academic references to be submitted electronically. The transcripts may be sent by regular mail to Professor Mann at Harvard Law School, Cambridge, Massachusetts 02138.

The deadline for applications is February 15, 2017, and announcement of the award will be made by March 15, 2017. The fellow selected will be awarded a stipend of $38,000.

Tuesday, November 29, 2016

The Second Annual Legal Studies Graduate Student Conference, "Law and Democracy," will take place Saturday and Sunday, April 22-23, 2017 at Brown University, Providence, Rhode Island. Deadline for submission: January 16th, 2017. Acceptance notification: Early February

Law and democracy are typically seen as interdependent: laws protect the fundamental rights that make democracy possible, while democracy ensures the legitimacy of law-making bodies. However, the two principles conflict just as often as they complement one another. Where democracy calls for radical change at times, the law looks to precedent and tradition. Where democracy privileges majority opinion, constitutional law often prioritizes minority rights. Where democracy depends on vocal dissent, and even civil disobedience, courts and law enforcement officials typically aim to contain civic unrest. Law and democracy are central pillars of the modern nation-state, but the conflicts between them–at polling stations or protests, in courts or legislative chambers–betray fundamental tensions in political and social life.

The Brown Legal Studies initiative invites paper submissions on the subject of “Law and Democracy” for its second annual graduate student conference. At a moment when important political and legal institutions in the United States are challenged from within and without, our conference will consider the interaction of law and democracy, both in our own time and in broader historical or comparatist contexts.

Please submit a 250-500 word abstract, along with a copy of your C.V, by Monday January 16th, 2017. Submissions should be sent to brownlegalstudies@gmail.com . If you have questions, please contact Jonathan Lande ( jonathan_lande@brown.edu ), Katie Fitzpatrick (kathleen_fitzpatrick@brown.edu ), or Sara Ludin ( saraludin@berkeley.edu ).

This essay deals with the various perspectives and interpretations of the Treaty of Waitangi over time. Drawn from a multi-author collection of essays in memory of the scholarship of the historian Ian Wards, the author argues that, whilst we must be mindful of not producing ‘treaty-centric’ histories, it is important not to reduce the historical interpretative complexities of the Treaty. Hickford continues by stating that one must be cautious when assuming the framers’ original intent deserves priority attention in interpretation. Instead we must look more deeply into the texts to embrace the nuances, complexities and frailties within them, including the ways in which they instantiated a number of interpretative communities. It is concluded that whilst the texts lived many lives of interpretation, argument and negotiation, their significance lies in their strength as texts, allowing them to become a lasting focus for political relations, and the development of constitutional histories (even as these material realities of indigenous and colonial co-existence were concealed or masked).

Monday, November 28, 2016

The American Society for Legal History announces the Peter Gonville Stein Book Award, to be presented annually for the best book in legal history written in English. This award is designed to recognize and encourage the further growth of fine work in legal history that focuses on all non-US regions, as well as global and international history. To be eligible, a book must sit outside of the field of US legal history and be published during the previous two calendar years. Announced at the annual meeting of the ASLH, this honor includes a citation on the contributions of the work to the broader field of legal history. A book may only be considered for the Stein Award, the Reid Award, orthe Cromwell Book Prize. It may notbe nominated for more than one of these three prizes.

For the 2017 prize, the Stein Award Committee will accept nominations of any book that bears a copyright date of 2015 or 2016 as it appears on the printed version of the book.

Nominations for the Stein Award should be submitted by March 15, 2017. Please send an e-mail to steinaward@aslh.net and include: (1) a curriculum vitae of the author; and (2) the name, mailing address, e-mail address, and phone number of the contact person at the press who will provide the committee with two copies of the book. This person will be contacted shortly after the deadline. (If a title is short-listed, six further copies will be requested from the publisher.)

Please contact the committee chair, Mitra Sharafi, with any questions:mitra.sharafi@wisc.edu.The announcement on the ASLH website is available here.

The Baldy Center for Law & Social Policy at the State University
of New York at Buffalo plans to award several fellowships for 2017-18 to
scholars pursuing important topics in law, legal institutions, and
social policy. Applications are invited from junior and senior scholars
from law, the humanities, and the social sciences.

Fellows are expected to participate regularly in Baldy Center
events, but otherwise have no obligations beyond vigorously pursuing
their research. Fellows receive standard university research privileges
(access to university libraries, high-speed Internet, office space,
computer equipment, phone, website space, working paper series, etc.)
and are encouraged to develop collaborative research projects with SUNY
Buffalo faculty members where appropriate. Those who wish to teach a
course to aid their research or gain teaching experience can be
accommodated on a case-by-case basis.

Post-Doctoral Fellowships are available to individuals who
have completed the PhD or JD but have not yet begun a tenure track
appointment. Post-Doctoral Fellows will receive a stipend of $40,000 and
may apply for up to $2000 in professional travel support.
Post-doctoral Fellowships will ordinarily be for a period of two years.

Mid-Career and Senior Fellowships are available to
established scholars who wish to work at the Center, typically during a
sabbatical or research leave. Awardees will receive a living expense
allowance of $1,500 per month during the period of their residence.

Application materials include:(1) a description of the planned research (question, conceptual framework, method, possible findings, importance to the field),
(2) a complete academic and professional resume,
(3) an academic writing sample,
(4) the names and contact information of three academic references (no letters yet), and
(5) if a mid-career or senior applicant, the time period during
which the applicant would work at the Center. Completed applications are
due no later than January 17, 2017. (Apply by clicking the button
below). For further information, see our answers to frequently asked questions. Additional questions about the Baldy Fellows Program should be addressed to Gloria Paveljack, gep@buffalo.edu or (716) 645-2102.

Primary criteria for selection include intellectual strength of the
proposal, demonstrated academic achievement, and promise of future
success. Additional considerations include the overall mix of topics,
disciplines, and backgrounds of the selected group of fellows.
For information on current and past Baldy Fellows, see the Baldy Center website.

On November 27, 2006, at a kitchen table in Sharon, Massachusetts, the Legal History Blog was born. The first post was a simple hello, announcing the blog to come.

The next posts appeared with the sort of fare LHB readers have come to expect: posts about new SSRN papers, a call for papers, news about a new book and an honor bestowed on legal historian Morty Horwitz. The very first person to comment on the blog was legal historian Al Brophy, who is also a blogger. Readership began with a handful of visitors, and then built steadily as more of you came along.

In honor of LHB’s 10th anniversary, I thought I would tell you the story of LHB’s early days when I created the blog at my kitchen table. It is a story about how social media can enhance a field, and it is also a personal story about the way the blog mattered to my life as a scholar.

I began the Legal History Blog on my own after a couple of legal historians I’d asked to join me were too busy. Going it alone was a little terrifying, but had some advantages. I could give the blog the sort of tone and content that I thought it needed, and I hoped this would help LHB establish a readership. One important model for the blog was Lawrence Solum’s Legal Theory Blog devoted solely to posts about scholarship. Another model was History News Network and similar sites with news of the field and occasional opinion pieces. This sort of blogging was sustainable because it didn’t rely on a steady stream of original essays.

LHB was warmly welcomed into the law and history blogospheres. But sometimes fellow legal historians seemed surprised that I would devote time to blogging and wondered why on earth I did it. I started the blog because I felt that the field of legal history needed a more dynamic online presence. Scholars in other fields often had an outdated and narrow understanding of what legal historians did. I wanted to show that we weren’t antiquarians of formal law, and to illustrate the ways legal historians draw upon all the rich methodologies employed by others. Legal historians have long focused on social and intellectual history. I wanted to create a space that also emphasized transnational and comparative legal history and the sort of work that now falls within the field of the United States and the World. I hoped the blog would help scholars connect with each other and would bring new readers for the works posted about.

Although I created the blog because I thought legal history needed it, LHB also turned out to be very good for me. I was on leave in the fall of 2006 with a fellowship from the American Council on Learned Societies to complete my book on Thurgood Marshall’s work in Africa. I found a creative way to “top off” that fellowship: my daughter and I moved in with my then-boyfriend (hence the blog’s Sharon, MA birthplace). We all long for those stretches of time for writing that come only with a leave, and the isolation of Sharon – way out in the Boston suburbs – helped me protect my writing time. But writing is not always exhilarating. Sometimes I would get to the end of the day with little more than a paragraph – and then I would delete it. On days when the writing made me feel worthless, the blog was something of a savior. There were visitors! People from around the country and the world were reading my posts. Social media can be a distraction, but especially in the blog’s first year, LHB was sustenance. It made me feel connected to a broader world of readers. That audience kept me going.

Ten years ago today, Mary Dudziak sat down at a kitchen table and typed the first entry on Legal History Blog: “ Welcome! This is a new blog on news and scholarship in legal history. Stay tuned for more... “ 9,164 posts and 4.27 million page views later, we’re still here!

Saturday, November 26, 2016

From Cosmopolitans to Cosmopolitanisms. Proposals for panels due by 1 February 2017. Proposals for papers due by 1 March 2017

Across the long eighteenth century virtually every form of visual and textual representation and almost every area of intellectual enquiry was transformed by a changing sense of the world and its inhabitants. That change came in response to the practical experience of intercultural communication and exchange arising from both increased commerce and increasingly global conflict. Narratives of travel and contact, images depicting cultural difference both small and large, fictions of worlds new, old and exotic flooded the cultural marketplace. Theorists of statecraft and governance both then and now recognize this period as a crucial moment where conceptions of nationhood, empire, citizenship, diplomacy and globality were first broached. Kant’s desire for a cosmopolitical future was partly spurred by a century of almost continual war.

For their joint annual meeting, the Canadian Society for Eighteenth-Century Studies and the Northeast American Society for Eighteenth-Century Studies invite panel and paper submissions that address this topic in all of its complexity. The meeting will be held at the Chelsea Hotel in Toronto, Ontario, 18-22 October 2017 and is co-hosted by colleagues from the University of Toronto and local institutions including Humber College, Ryerson University and York University.

We invite proposals that investigate the cosmopolitan in a range of fields, including but not limited to literature, art and architecture, book history, education, geography, history, history of science, indigenous studies, law, linguistics, music, philosophy and political science. Among the many issues raised under this topic the organizing committee is interested in panels and proposals that address the definition of cosmopolitanism itself both in the eighteenth century and within our current critical moment, the practice of intercultural exchange that leads to the assertion or cancellation of cosmopolitan identity, the circulation of goods and peoples that impinge on emergent and disappearing understandings of the “world” and its citizens, the theorization of the desire for identities beyond that of nation, tribe or clan, the resistances to such “worlding” desires, and the specific representation of cultural contact, cultural difference and exchange. This may well be a conference populated by travellers, pirates, painters, diplomats, merchants, jurists, castaways and philosophers, some no doubt enthusiastic to the promises of cosmopolitanism, some attuned to its cost, and some skeptical about its claims.

In keeping with CSECS and NEASECS tradition, panels and papers devoted to elements of the long eighteenth century not directly related to the conference theme are also welcome. Papers in either French or English are welcome. Individual proposals should include a 150-word abstract of the paper and its title, and a 150-word biographical statement including your name, academic status, institutional affiliation, membership (CSECS/NEASECS), and e-mail address. Panel proposals should include the above, as well as a brief description of the panel itself.

Sherally Munshi has written a thoughtful and moving article about the
relationship among race, citizenship, immigration, and the visual
imagery of assimilation and difference. In “You Will See My Family Became So American,”
she tells the story of Dinshah Ghadiali, a Parsi Zoroastrian born and
raised in India who immigrated to the United States in 1911, became a
U.S. citizen in 1917, and prevailed over the federal government’s effort
to strip him of that citizenship in 1932. Along with Ghadiali
himself—proud American, soldier, erstwhile inventor, political activist,
and all in all memorable character with a larger-than-life
personality—the protagonists in the story are a striking series of
photographs Ghadiali submitted into evidence in his denaturalization
trial. Munshi’s bold and ranging exploration of a variety of themes in
the legal history of race, citizenship, and immigration culminates in a
close reading of these photographs, in which she shows how the images
reveal the tension between the “effortful displays of Americanization…
and unwitting disclosures of racial identity.” (P. 693.)

In the mid-1990s, as public trust in big government was near an all-time
low, 80% of Americans told Gallup that they supported the death
penalty. Why did people who didn’t trust government to regulate the
economy or provide daily services nonetheless believe that it should
have the power to put its citizens to death?

That question is at the heart of Executing Freedom,
a powerful, wide-ranging examination of the place of the death penalty
in American culture and how it has changed over the years. Drawing on an
array of sources, including congressional hearings and campaign
speeches, true crime classics like In Cold Blood, and films like Dead Man Walking,
Daniel LaChance shows how attitudes toward the death penalty have
reflected broader shifts in Americans’ thinking about the relationship
between the individual and the state. Emerging from the height of 1970s
disillusion, the simplicity and moral power of the death penalty became a
potent symbol for many Americans of what government could do—and
LaChance argues, fascinatingly, that it’s the very failure of capital
punishment to live up to that mythology that could prove its eventual
undoing in the United States.

A few blurbs:

“Executing Freedom
is a truly extraordinary book. It offers a remarkable reading of the
resonance of America’s death penalty and some of the deepest strains in
our culture, in particular beliefs about negative freedom. In addition,
LaChance offers important lessons for abolitionists, warning that the
problems in the death penalty system are not simply its assault on human
dignity or its arbitrary and flawed administration, but rather its
failure to generate the meaning that modern citizens crave. From start
to finish, this book provides a sophisticated and persuasive analysis of
the cultural life of capital punishment.” -- Austin Sarat

“LaChance
brilliantly reframes the recent history of the death penalty in the
United States around the competing discourses of freedom, governance,
and agency. His analysis is complex and compelling. Interpreting
fictional and non-fictional sources of crime and punishment ranging from
In Cold Blood to the TV series Dexter, he argues that the
death penalty reemerged in the 1970s as an assertion of the negative
freedoms ‘from’ big, centralized, welfare oriented, technocratic
government. His conclusion regarding the future of the death penalty is
startling: the death penalty will become a casualty of its own success.
Not only has it failed in its promise of retributive justice and moral
certainty, it has become the apotheosis of big government programs it
was supposed to supplant. This book will change the way scholars think
about the death penalty and the way activists work to abolish it.” -- Patrick Ewick